Hardon, Ivey v. Massachusetts Bay Transportation Authority (SPR 20260778)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 11, 2026 SPR26/0778 Julie A. Ciollo, Esq. Records Access Officer Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: On March 4, 2025, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, I understand that the MBTA furnished a copy of this petition to the requestor, Ivey Hardon. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 18, 2026, Ms. Hardon requested the following: Please furnish all electronic correspondence between [a named individual] and [numerous other another named individuals] ... The dates I am seeking for all above referenced is 9/1/2025 thru 02/18/2026. Please furnish all emails sent by [the named individual] seeking prior approval for travel and reimbursement at the MBTA’s expense from the date of contract commencement to 2/18/2026. Please furnish all electronic correspondence sent from [the named individual] referencing working remotely and the state of South Carolina from the date of his contract commencement thru 2/18/2026. Petition to Assess Fees – Agencies A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Julie A. Ciollo, Esq. SPR26/0778 Page 2 March 11, 2026 In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. Current Petition In its petition, the MBTA states that “the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(d) and (n), as well as the attorney-client privilege.” The MBTA argues the following in support of its request to assess fees: The request calls for records likely to contain material that will require redaction under Exemption (d) to the Public Records Law, which protects “inter-agency or

Julie A. Ciollo, Esq. SPR26/0778 Page 3 March 11, 2026 intra-agency memoranda or letters relating to policy positions being developed by the agency.” Given the nature of topics that will be contained within the responsive emails, the request will capture a number of records concerning ongoing, non-public policy development within the MBTA. Responsive and relevant communications do not constitute factual studies or reports but are rather recommendations on policy matters found within ongoing deliberative processes within the MBTA. The request also calls for records that will require redaction under Exemption (n) to the Public Records Law, which protects records that “relate to internal layout and structural elements, security measures, emergency preparedness… or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the Commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety.” Specifically, responsive records in this matter may contain information about safety plans, safety and vulnerability assessments, and related details that, in the hands of a bad actor, could be used to negatively impact transportation safety. Lastly, certain responsive emails will contain material that is protected by the attorney-client privilege, which applies to the Public Records Law. These communications are between MBTA personnel and MBTA attorneys concerning MBTA legal matters. The MBTA relied on this privilege in ensuring that the provision of candid legal advice, made in confidence, would result in the MBTA fulfilling its legal obligations. The MBTA has not waived the privilege concerning these communications. In light of the MBTA’s petition, I find the MBTA has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the MBTA may assess a fee for the segregation and redaction of such exempt material. Appropriate Definitions, Parameters, and Time Frames In Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner.

Julie A. Ciollo, Esq. SPR26/0778 Page 4 March 11, 2026 See Friedman v. Div of Admin. Law Appeal and Bureau of Special Educ. Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Ms. Hardon and the MBTA to communicate directly in order to facilitate providing records more efficiently and affordably. Ms. Hardon may consider narrowing the scope of her request to enable the MBTA to provide the records more efficiently and affordably. The MBTA must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, I find the MBTA has met its burden to explain how the response could not be prudently completed without segregation or redaction. Ms. Hardon is advised that she may appeal the MBTA’s fee estimate within ninety (90) days. See 950 C.M.R. 32.08(1). Please note, Ms. Hardon has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c).

Julie A. Ciollo, Esq. SPR26/0778 Page 5 March 11, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Ivey Hardon